AMERICAN BAR ASSOCIATION
SECTION OF FAMILY LAW
REPORT TO THE HOUSE OF DELEGATES
1 RESOLVED, That the American Bar Association urges the Senate to give its advice and consent
2 to the ratification of the Hague Convention on the International Recovery of Child Support and
3 Other Forms of Family Maintenance, the final text of which was adopted by the Hague
4 Conference on Private International Law on November 23, 2007.
6 FURTHER RESOLVED, That the American Bar Association urges Congress to enact legislation
7 to enable the United States to fully and uniformly implement this Convention.
The ABA Section of Family Law submits this Report in support of the Recommendation
that the United States become a party to the 2007 Hague Convention on the International
Recovery of Child Support and Other Forms of Family Maintenance (the Convention). 1
Specifically, the Recommendation urges the United States Senate to give its advice and consent
to ratification of the Convention, and the United States Congress to enact the necessary
implementing legislation. The Convention was concluded at The Hague on November 23, 2007,
after nearly five years of negotiation, and the United States signed it the same day.
The Departments of State and Health and Human Services (HHS) have indicated that
they expect that the Convention will be submitted to the Senate for ratification in June or July
2008, and that the proposed federal implementing legislation will be submitted to the Congress
for its consideration at the same time. The National Conference of Commissioners on Uniform
State Laws (NCCUSL) has likewise informed us that the amendments to the Uniform Interstate
Family Support Act (UIFSA) necessary to implement the Convention at the state level will be
presented to NCCUSL for approval at its July 2008 annual meeting.
Endorsement of this Convention is consistent with ABA support for previous Hague
conventions that address family protection matters, including the 1980 Convention on the Civil
Aspects of International Parental Child Abduction, the 1993 Convention on Intercountry
Adoption and the 1996 Protection of Children Convention.
Given the importance of this topic to U.S. families, and because the number of
transnational cases being handled by U.S. child support workers will continue to increase, the
United States was one of the most active participants in the negotiation of the Convention. There
is general agreement that a new convention is necessary to modernize and improve the
international system for the recovery of child support.
The formal negotiation of this Convention began under the auspices of the Hague
Conference on Private International Law in May 2003 and concluded with the adoption of the
text of the Convention at a Diplomatic Conference that took place November 5-23, 2007 in The
Hague. About 60 countries, plus numerous intergovernmental and non-governmental
organizations, were represented in these negotiations. All U.S. child support interests were
active participants in this negotiation. In addition to officials from HHS and the State
Department, U.S. delegates to the negotiation included active members of the ABA Sections of
Family Law and International Law, the Chair and Reporter of the NCCUSL UIFSA Drafting
A copy of the Convention is available at www.hcch.net/index_en.php?act=conventions.text&cid=131. An
optional Protocol on the Law Applicable to Maintenance Obligations was adopted at the same time as the
Convention was adopted. The United States does not intend to become a party to the Protocol.
Committee, the directors of several U.S. state child support agencies, and leadership of the
National Child Support Enforcement Association (NCSEA).
The Intent and Benefits of the Convention
Every child deserves the support of both of the child’s parents. However, ensuring the
enforcement of child support obligations is particularly difficult in transnational cases. While
U.S. courts will recognize and enforce foreign child support decisions on the basis of comity,
many countries do not reciprocate in the absence of a treaty obligation. Even in cases where
there are no legal obstacles to enforcing child support obligations across international
boundaries, the practical problems often mean that little or no support ever reaches the custodial
parent and child.
The Convention provides for a comprehensive system of cooperation between the child
support authorities of Contracting States, requires Contracting States to establish child support
decisions for applicants living in other Contracting States (subject to the jurisdictional and
certain other rules of the requested State), establishes uniform procedures for the recognition and
enforcement of foreign child support decisions, and requires effective measures for the prompt
enforcement of maintenance decisions.
This Convention contains numerous groundbreaking provisions that will, for the first
time on a world-wide scale, establish uniform, simple, fast, and inexpensive procedures for the
processing of international child support cases. While similar procedures already are the norm in
the United States, establishing them as the internationally agreed global standard represents a
considerable advance on prior child support conventions, which leave many of these procedures
to be regulated largely by each country’s national law. The United States is not a party to any of
these prior conventions.
A major benefit of ratification for the United States will be reciprocity: As noted above,
U.S. courts and child support agencies already recognize and enforce foreign child support
obligations in many cases whether or not the United States has a child support agreement with
the foreign country. Many foreign countries will not process foreign child support requests in
the absence of a treaty obligation. Thus, ratification of the Convention will mean that more
children residing in the United States will receive the financial support they need from their
parents, wherever the parents reside.
Implementation of the Convention in the United States
The Convention will not affect intrastate or interstate child support cases in the United
States. It will only apply to cases where the custodial parent and child live in one country and
the non-custodial parent in another. The Convention is largely consistent with current U.S. law
and, in fact, many of its provisions are modeled on UIFSA. International child support cases
within the scope of the Convention are already processed under existing federal and state law
and practice and compliance with our obligations under the Convention will require minimal
changes to existing law.
In order for the Convention to be implemented, however, certain conforming
amendments to existing federal legislation, as well as some amendments to the relevant uniform
state law, will be required. As explained above, the federal implementing legislation has been
drafted and will be submitted to the Congress this summer. NCCUSL is currently drafting the
amendments to UIFSA and those amendments will be presented to the Conference for adoption
in July 2008. Current federal law, enacted in 1996, mandates that U.S. states and territories
adopt the current version of UIFSA as a condition for continued receipt of federal funds, which
reimburse the states for two-thirds of the costs of administering the states’ child support
programs. Federal approval of a state’s child support program also is a condition for funding of
the state’s Temporary Assistance for Needy Children (TANF) program. Thus, UIFSA is
currently in force in all U.S. states, plus the District of Columbia, Puerto Rico, the U.S. Virgin
Islands, and Guam. The proposed federal implementing legislation for this Convention will
require the states and territories to adopt, within two years, the new version of UIFSA, which
will incorporate changes required by the proposed Convention, in order to continue to receive
To ensure that we are fully able to comply with our obligations, the United States will not
deposit its instrument of ratification until all the necessary changes to federal law have been
enacted and the UIFSA amendments have been adopted by all U.S. jurisdictions.
Summary of the Convention
Chapter I of the Convention (Articles 1-3) addresses the object and scope of the
Convention and key definitions. The Convention will apply on a mandatory basis to child
support obligations and to the recognition and enforcement of spousal support orders when the
application is made in conjunction with a claim for child support. This is consistent with the
scope of the federally funded U.S. child support program, which requires state child support
agencies to provide services to applicants seeking spousal support if there is also a request for
child support from the same applicant involving the same debtor. In addition, with the
exception of Chapters II and III (which require services by Central Authorities), the Convention
applies to the establishment and modification of spousal support even in cases where there is not
a related request for child support. This is acceptable to the United States because state child
support agencies (which will perform most of the Central Authority responsibilities under the
Convention) are not required to provide services in spousal-only cases. Applicants in spousal-
only cases will thus be able to go directly to the competent authority (i.e., the court or
administrative tribunal) with a request under the Convention, but will not be able to apply for
Central Authority assistance in the processing of their request. States may declare that they will
extend all or part of the Convention to other family support obligations. As there is no uniform
federal or state program in the United States with regard to support obligations for other types of
family relationships, the State Department and HHS are not recommending that the United States
make such a declaration.
Chapter II (Articles 4-8) provides detailed provisions on administrative cooperation
between Central Authorities, including designating which functions can be delegated to other
public bodies. The United States intends to designate the Secretary of the Department of Health
and Human Services as the Central Authority under this Convention. The HHS Office of Child
Support Enforcement (OCSE), which has primary responsibility within the federal government
for child support matters, will handle the Central Authority responsibilities at the federal level.
Most of the Central Authority responsibilities for individual cases will be delegated to the state
child support agencies. While the United States is not a party to any multilateral child support
convention, we are a party to a number of federal-level bilateral child support agreements. In
addition, individual U.S. states have informal child support reciprocity arrangements with a
number of foreign countries. The division of Central Authority responsibilities between the
federal government and the states will be generally the same under the multilateral Convention
as it is now for international cases.
Chapter III (Articles 9-17) sets out the rules governing applications made under the
Convention through Central Authorities (rather than direct applications made either pro se or
through a private attorney to the competent authority). The available applications include
applications to establish a child support decision, recognize and enforce an existing decision, or
modify a decision. Articles 14-17 deal with the important issue of the cost of services (including
legal assistance and genetic testing) under the Convention for child support applicants who use
the Central Authority system. As most child support applicants are people of modest means,
who would be unable to pursue recovery of child support if they had to pay high fees, including
for legal services, cost-free services is a key to the success of the Convention. The Convention
does provide no-cost services to child support creditors who use the Central Authority system,
with very few exceptions.
Chapter IV (Article 18) sets down rules to limit the circumstances in which one State can
modify the decision of another State. This article is similar to one in UIFSA.
Chapter V (Articles 19-31) provides an efficient procedure for the widest recognition of
existing decisions. Along with the rules for cost-free services, the recognition and enforcement
rules are key to the success of the Convention. The Convention provides for a streamlined,
transparent process that is very similar to the process under UIFSA. Article 19 provides that
Chapter V applies to applications transmitted between Central Authorities as well as to requests
sent directly to a competent authority.
Article 20 deserves a detailed analysis, as it contains the jurisdiction rules that are part of
the core of the Convention, and because some of these rules initially raised concerns for the
United States during the negotiation. Article 20(1) requires the recognition and enforcement of a
decision made by a Contracting State if it is enforceable in the State of origin and if one of the
following listed bases for jurisdiction is present: (a) the respondent was habitually resident in the
State of origin at the time proceedings were instituted; (b) the respondent has submitted to
jurisdiction; (c) the creditor was habitually resident in the State of origin at the time proceedings
were instituted; (d) the child for whom maintenance was ordered was habitually resident in the
State of origin, provided that the respondent has lived with the child in that State or has resided
in that State and provided support for the child there; (e) except in child maintenance matters, the
parties have made a written agreement to jurisdiction; or (f) the decision was made by an
authority exercising jurisdiction on a matter of personal status or parental responsibility, unless
that jurisdiction was based solely on the nationality of one of the parties.
In response to serious U.S. concerns about some of these jurisdictional rules, the
negotiators agreed to include Article 20(2) in the Convention. Pursuant to that Article, a State
may make a reservation with respect to three of the bases of jurisdiction set forth under Article
20(1): creditor-based jurisdiction, jurisdiction based on a written agreement, or jurisdiction
based on a matter of personal status or parental responsibility. The Department of State and
HHS intend to recommend that the United States make a reservation in respect of Article
20(1)(c), (e), and (f) because those provisions are not consistent with U.S. law on the minimum
contacts required for jurisdiction in order to satisfy constitutional due process requirements.
The 20(1)(c) basis for jurisdiction – the fact that the creditor resides in the forum State -
is a common one in nearly all countries, but not the United States. In the United States, under
current Supreme Court jurisprudence, the mere fact that the creditor resides in the forum does not
give the forum jurisdiction over the debtor in a child support case. In order to satisfy our due
process standards, there must be a nexus between the debtor and the forum in order to give the
forum jurisdiction over the debtor. In other words, it is the respondent’s (debtor’s) contacts with
the forum, not the petitioner’s (creditor’s), that are determinative. Kulko v. Superior Court, 436
U.S. 84 (1978).
Article 20(1)(e) requires a competent authority to recognize and enforce a support
decision, other than one for child support, if the parties have agreed in writing to the issuing
State’s jurisdiction. In the United States, such an agreement would be unenforceable if the
parties had agreed to jurisdiction by a forum that has no nexus with either party.
Finally, Article 20(f) requires a competent authority to recognize and enforce a support
decision where the issuing authority exercised jurisdiction on a matter of personal status or
parental responsibility. In the United States, a competent authority must have personal
jurisdiction over the parties. The fact that a court has in rem jurisdiction over a marriage, for
example, does not mean that the court has personal jurisdiction over the parties. Without the
requisite minimum contacts for personal jurisdiction, a U.S. court cannot issue a valid order.
Chapter VI (Articles 32-35) provides that, while enforcement shall take place in
accordance with the law of the State addressed, it shall be prompt and effective.
Chapter VII (Article 36) describes the circumstances under which a public body can seek
reimbursement of child support owed to a custodial parent when the public body has provided
benefits to that parent in lieu of child support.
Chapters VIII (Articles 37-57) and IX (Articles 58-65) include general and final
As the United States is not a party to any of the prior maintenance conventions, while
many other countries are parties to one of them, one of the main reasons for the negotiation of
this Convention was to adopt a Convention that the United States would join. Thus, many
countries made it clear that they expected the United States to take the lead in rapid ratification
of the Convention. The United States showed its intent by signing the Convention on the day it
was adopted. It will be important for the overall success of the Convention for the United States
to complete all the steps (ratification and implementing legislation) necessary for it to carry out
the Convention’s obligations as quickly as possible. As the Convention requires only two parties
for entry into force (Article 60(1)), early U.S. ratification and implementation will likely hasten
entry into force of the Convention.
Respectfully submitted by:
Gregg M. Herman
GENERAL INFORMATION FORM
Submitting Entity: ABA Section of Family Law
Submitted By: Gregg M. Herman, Chair
1. Summary of Recommendation(s).
The Section of Family Law of the American Bar Association recommends to the ABA
House of Delegates that the ABA urges the U.S. Senate to give its advice and consent to
the ratification of the 2007 Hague Convention on the International Recovery of Child
Support and Other Forms of Family Maintenance (the “Child Support Convention”). It
also recommends that the ABA urges the Congress to enact the necessary implementing
2. Approval by Submitting Entity.
This recommendation was approved by the Council of the Section of Family Law on
April 30, 2008.
3. Has this or a similar recommendation been submitted to the ABA House of Delegates or
Board of Governors previously?
4. What existing Association policies are relevant to this recommendation and how would
they be affected by its adoption?
Endorsement of this Convention is consistent with ABA’s February 1981 endorsement of
the 1980 Convention on the Civil Aspects of International Child Abduction, the ABA’s
February 1987 endorsement of the recommendations of the U.S. Commission on
Interstate Child Support that were adopted by the U.S. Congress as the Uniform Interstate
Family Support Act (UIFSA); the ABA’s February 1994 endorsement of the 1993
Convention on Intercountry Adoption; and the ABA’s August 1997 endorsement of the
1996 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and
Cooperation in Respect of Parental Responsibility and Measures for the Protection of
Children (commonly referred to as the Protection of Children Convention).
5. What urgency exists which requires action at this meeting of the House?
The Administration intends to submit the Child Support Convention to the Senate
for its advice and consent to ratification in the summer of 2008, and to submit to the
Congress the necessary implementing legislation at the same time. Action by the House
at this time is necessary to have an influence on Senate and Congressional action.
6. Status of Legislation. (If applicable.)
HHS and the State Department have drafted the federal implementing legislation
and will shortly be submitting it to Congress. NCCUSL is in the final steps of
drafting the amendments to the Uniform Interstate Family Support Act (UIFSA) so that
UIFSA (and state law) will comply with the Convention. NCCUSL will present the
UIFSA amendments to the Conference for adoption at its annual meeting in July 2008.
7. Cost to the Association. (Both direct and indirect costs.)
8. Disclosure of Interest. (If applicable.)
Some section members were delegates to the Hague negotiations where the
Convention was adopted and some have been involved with NCCUSL in drafting
the UIFSA amendments.
9. Referrals. (List entities to which the recommendation has been referred, the date of
referral and the response of each entity if known.)
The Recommendation and Report was referred to the following ABA entities for
comment and co-sponsorship: International Law; Dispute Resolution; General Practice,
Solo and Small Firm; Government and Public Sector Law; Legal Aid and Indigent
Defendants; Young Lawyers; State and Local Government Law; Judicial Division;
Individual Rights and Responsibilities; and the Commission on Youth at Risk.
10. Contact Persons. (Prior to the meeting. Please include name, address, telephone number
and email address.)
Timothy B. Walker Mary Helen Carlson
Section Delegate Attorney Adviser
Mustain-Wood Walker et al LLC Office of the Legal Adviser for
6601 S. University Blvd, Ste 200 Private International Law (L/PIL)
Centennial, CO 80121-2973 U.S. Department of State
email@example.com 2430 E Street, NW (South
(O) 303/730-0067 Bldg)Washington, DC 20037-2800
(C) 303 /638-0608 (O) 202/776-8425
Marshall J. Wolf firstname.lastname@example.org
Wolf and Akers Lawrence Katz
2200 One Cleveland Center Chair of Family Law Section’s
1375 East 9th Street International Law Committee
Cleveland, OH 44114-2806 Lawrence S. Katz, PA
(O) 216/623-9999 Two Datran Center – Suite 1200
(C) 216/272-3007 9130 S. Dadeland Boulevard
email@example.com Miami, Florida 33156
Co-Chair of International Law
Section’s Family Law
10500 Pine Haven Terrace
Rockville, MD 20852
(O) 301/656-1177 x331
11. Contact Persons. (Who will present the report to the House. Please include email
address and cell phone number.)
Timothy B. Walker
Mustain-Wood Walker et al LLC
6601 S University Blvd Ste 200
Centennial, CO 80121-2973
(C) 303 /638-0608
Marshall J. Wolf
Wolf and Akers
2200 One Cleveland Center
1375 East 9th Street
Cleveland, OH 44114-2806
Mary Helen Carlson
Office of the Legal Adviser for
Private International Law
(L/PIL) U.S. Department of State
2430 E Street, NW (South Bldg)
Washington, DC 20037-2800
1. Summary of the Recommendation
The Recommendation urges the U.S. Senate to give its advice and consent to ratification of the
2007 Hague Convention on the International Recovery of Child Support and Other Forms of
Family Maintenance (the “Child Support Convention”). It also urges the U.S. Congress to enact
the necessary implementing legislation.
2. Summary of the Issue that the Resolution Addresses
Absent a treaty, it is often difficult, if not impossible, to enforce child support obligations in
cross-border cases when the custodial parent and child live in one country and the non-custodial
parent lives in another. The United States is not a party to any multilateral child support
convention. All of the prior child support conventions are outmoded and fail to address many of
the problems facing parents and child support workers in these cases.
3. Please Explain How the Proposed Policy Position will Address the Issue
The subject of the Recommendation – the Child Support Convention – provides for a uniform,
comprehensive system of cooperation between child support authorities of Contracting States,
establishes uniform procedures for the recognition and enforcement of foreign child support
decisions, and requires effective measures for the prompt enforcement of maintenance decisions.
4. Summary of Minority Views
None of which we are aware.